ML20010B353

Brief,In Form of Pleading,Re Effect of Pending Commission Rulemaking on Admissibility of Issue 6 (Atws).Aslb Is Bound by ALAB-218 Precedent.Issue 6 Should Not Be Admitted.W/ Certificate of Svc

ML20010B353
Person / Time
Site:	Perry
Issue date:	08/11/1981
From:	Churchill B CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ALAB-218, NUDOCS 8108140393
Download: ML20010B353 (6)

Text

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August 11, 1981 m UNITED STATES OF AMERICA DO W '} g ,

NUCLEAR REGULATORY COMMISSION ~ .

Before the Atomic Safety and Licensing Board >

q. hS. ; ?i ~ ;,'

L: = ; 6 In the Matter of )

) m THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 f 9 ILLUMINATING COMPANY, Et Al. ) 50-4 s

) (Operating Lice ,4r3 f (Perry Nuclear Power Plant, ) /'s Y g Units 1 and 2)

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APPLICANTS' BRIEF ON THE EFFECT OF PENDING" 87A

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COMMISSION RULEMAKING ON ADMISSIBILITY OF@A **

ISSUE #6 (ANTICIPATED TRANSIENTS WITHOUT SC y s In its Special Prehearing Conference Memorandum and Order dated July 28, 1981, (" Order") , the Licensing Board admitted the following as an issue in the above-captioned proceeding:

Issue #6: Applicant should install an automated standby liquid control system to miti-gate the consequences of an anticipated transient without scram.

This issue was derived from Contention 15, proposed by Intervenors Sunflower Alliance, Inc., et al. (" Sunflower"). Applicants had

! argued against the admissibility of Contention 15 on several grounds, including the fact that the Commission's proposed re-quirements for preventing or mitigating the consequences of an l

anticipated transient withcut scram (" ATWS " ) were about to become-the subject of a general rulemaking proceeding by the Commission.

l In admitting Issue #6 for consideration in the instant licensing proceeding, the Licensing Board did not discuss Applicants' argument that the issue was to become the subject of a general 9$'

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rulemaking proceeding. Order, pp. 74-76. However, the Licensing Board invited the parties to file brit.s by August 12, 1981, on the effect of the proposed ATWS rulemaking on the admissibility of Issue #6. Order, p. 98.--1/ It is Applicants' position that consideration of Issue #6 in this proceeding is precluded by Commission precedent with respect to the pendency of generic rule-making proceedings.

At a public meeting on June 16, 1981, the Commission voted to initiate a general rulemaking proceeding by publishing two alternative ATWS proposals for rulemaking in the Federal Register.--2/ When that publication occurs, the Commission will have out for public comment two alternative proposals for defining and codifying the Commission's requirements for the prevention and mitigation of ATWS events, including requirements relevant to acceptable standby liquid control systems. Thus, the consideration of Issue #6 in this proceeding would be a duplication of the very l issue to be considered by the Commission in its rulemaking pro-ceeding. This the Commission has prohibited.

l *

~-1/ See also Tr. 611-612 in which the Licensing Board Chairman t

indicated that the parties would have opportunity to brief the l question of the effect of Com.Tission rulemaking proceedings on the admissibility of contentions.

_2/ SECY 80-409, and an alternative proposal by Chairman Hendrie.

l At the time of the Special Prehearing Conference on June 2-3, 1981, the Commission had announced its intent to initiate rule-making proceedings on its ATWS requirements, but had not yet l

done so.

l t

3-As Applicants stated in their May 22, 1981, brief on Sunflower's contentions, pp. 10-13, 24-25, the rule is that

" licensing boards should not accept in individual licensing pro-ceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974). That precedent is especial-ly germane here, where consideration of the same issue in this proceeding that is being considered in' a general rulemaking pro-ceeding would be administrative 1y inefficient and counterproductive.

No purpose would be served in having this Licensing Board determine whether or not Applicants should install an automated standby.

liquid control system when that very question will be determined generically by the Commission in a rulemaking proceeding. Further, the logic of the Commission's prohibition is vividly demonstrated where, as in this proceeding, there is virtually no indication that the intervenors raising the issue can contribute meaningfully to its resolution in this licensing hearing.--3/

l The Licensing Board Chairman raised the question of i

l whether the Douglas Point doctrine should apply if the licensing proceeding might be concluded prior to the conclusion of the

_3/ The dialogue between Sunflower and the Licensing Board during the Special Prehearing Conference, Tr. 414-18, suggests that Sunflower knows nothing at all about ATWS. Indeed, Issue #6 arises solely from a question raised by Administrative Judge Shon.

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rulemaking proceeding. The answer must obviously be yes, or the Douglas Point rule could never be implemented; there is no way to predict with any degree of certainty when either type of pro-ceeding will end. This is not an illogical result. If the Commission determines, as it has in the ATWS rulemaking, th2c currently operating plants need not cease operation pending the outcome of the rulemaking, it is because the Commission has .

satisfied itself that such actions are not necessary to protect the public health and safety. Such a determination would be even more valid in the case of a facility such as the Perry facility, which has not yet begun operation.

Applicants respectfully submit that the Licensing Board is bound by the precedent in ALAB-218, and Issue #6 should not be admitted for consideration in this licensing proceeding.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE i t By , /

/

IQbp!( C Wnbdiill ~

Jay E. Silberg Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 ,

Dated: August 11, 1981

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board, In the Matter of )

! )

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, Et Al. ) 50-441

) (Operating License) l (Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing

" Applicants' Brief on the Effect of Pending Commission Rulemaking on Issue #6 (Anticipated Transients Without Scram)" were served, by deposit in the U.S. Mail, first class, postage prepaid, this 11th day of August, 1981, to all those on the attached Service List.

~ } Y/

"BrucO Mhurchill '

Dated: August 11, 1981

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p ew- g s -- ,- - ,- --y - - + - -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 COMPANY, et al.

~~ ) 50-441 i

)

(Perry Nuclear Power Plant, )

Units 1 and 2) , )

SERVICE LIST

Peter B. Bloch, Chairman Mr. Jeff Alexander 1

Atomic Safety and Licensing Board OCRE Representative

U. S. Nuclear Regulatory Commission 929 Wilmington Avenue, #H Washington, D. C. 20555 Dayton, Ohio 45420 Dr. Jerry R. Kline Daniel D. Wilt, Esquire Atomic Safety and Licensing Board Wegman,.Hessler & Vanderburg U. S. Nuclear Regulatory Commission Suite 102 Washington, D. C. 20555 7301 Chippewa Road Brecksville, Ohio 44141 Mr. Frederick J. Shon Atomic Safety and Licensing Board Terry Lodge, Esquire U. S. Nuclear Regulatory Commission .915 Spitzer Building Nashington, D. C. 20555 Toledo, Ohio 43604 Atomic Safety and Licensing Board Mr. Tod J. Kenney Panel 228 Gouth College, Apt. A U. S. Nuclear Regulatory Commission dowling Green, Ohio 43402 Washington, D. C. 20555 Donald T. Ezzone,. Esquire Atomic Safety and Licensing Appeal Assistant Prosecuting Attorney Board Panel . Lake 'qunty Administration Center U. S. Nuclear Regulatory Commission 105 Center Streat l Washington, D. C. 20555 Painesville, Ohio 44077 l

l Docketing and Service Sectica Janice E. Moore, Esquire i

Office of the Secretary Office of the Executive Legal U. S. Nuclear-RegLlatory Commission Director

Washington, D. C. 20555 U. S. Nuclear Regulatory Commission 20555 Washington, D. C.

Charles A. Barth, Esquire Office of the Executive Legal

! Director l U. S. Nuclear Regulatory Commission Washington, D. C. 20d55.

.